CONCORD, N.H., January 23, 2014 – Today, a bipartisan state house committee in New Hampshire voted unanimously in support of a bill which deems federal indefinite detention powers unconstitutional and bans “any activity that aids” the federal government in carrying out such powers.

Introduced by Rep. Tim O’Flaherty (D- Hillsborough), the bill quickly garnered co-sponsorship from two republicans and two democrats. Tenth Amendment Center communications director Mike Maharrey praised the bipartisan action. “Some things are so bad that people know it’s time to drop party affiliations and work together. Indefinite detention is really nothing more than kidnapping sanction by law, and the resistance to it from both parties in the state is refreshing news,” he said.

Signed into law as part of the National Defense Authorization Act of 2012 (NDAA), provisions of the act purport to authorize the federal government to arrest a person without trial until the “end of hostilities,” which some experts point out could be many years.

As constitutional scholar Rob Natelson noted in an analysis of the Act, the federal government is, in essence, claiming the power to detain anyone – within the U.S. or not – and hold them indefinitely without trial.

New Hampshire House Bill 1279 (HB1279) would add to state law that such acts are violations of both the state and federal constitutions.

It reads, in part, “The General Court of New Hampshire and the Governor of New Hampshire hold that indefinite detention or transfer to jurisdictions outside the United States of citizens of New Hampshire in particular and citizens of the United States in general are unlawful pursuant to the Constitution of the State of New Hampshire, Part the First, Articles 15, 17 and 19, and the Constitution for the United States of America, Amendments IV, V and VI.”

The legislation also prohibits any agent or employee of the state, including the National Guard, from aiding any agency of the federal government, including the Armed Forces, in carrying out such acts.

Natelson also wrote that some advocates of these detention powers claim that the NDAA is not the controlling law, and that the previously-passed Authorization to Use Military Force (AUMF) is where the power is obtained.

Dan Johnson, who heads up the anti-NDAA organization People Against the NDAA (PANDA) has pointed out that similar bills which have passed previously in Virginia, Michigan and elsewhere have had some significant loopholes which will not serve the purpose of stopping the implementation of NDAA.

About the Michigan bill signed into law by Gov. Snyder, he noted that the bill there only specifically addresses the 2012 NDAA, and not the AUMF, thus allowing the state to claim they were aiding federal indefinite detention powers under the latter.

In that analysis, Johnson also pointed out that the Michigan bill only banned state participation in indefinite detention activities with the armed forces of the United States, leaving “the door wide open for any state agent to assist any other federal, or international, agency, or mercenary, when implementing the detention provisions.”

The U.S. Constitution: Every Issue, Every Time. No Exceptions, No Excuses!

HB1279 addresses both of these issues specifically due to an amendment offered by Rep. Dan Itse (R-Rockingham) and Rep. Andrew White (D-Grafton). The prohibitions are broad, and include not just the 2012 NDAA, but “any other similar law, order or regulation, in the investigation, arrest, detention, extra-judicial transfer to foreign jurisdictions or entities, military tribunal or trial, of any person within the United States.”

It also bans participation in indefinite detention under NDAA, but also under “any other similar law, order or regulation.”

Maharrey suggested that while those deficiencies in previous bills are real, without them, the improved New Hampshire bill might not exist.

“In our experience, when you bite off more than you can chew, you lose. In 2012, when Virginia passed HB1160 into law, there was much to be desired. But a failure there could have had the effect of killing any future efforts in other states, as this is just what happened when Texas tried to push back against the TSA in 2011.

They failed, and other legislators told us they basically got cold feet,” he said. “But after Virginia, then California passed bills with very limited effect, we heard from other state legislators that they wanted to follow that path, but turn things up a notch by improving bills in their own states. We see this playing out in New Hampshire today.”

Constitutional Republic

True Federalism.

“The way to have good and safe government is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to.

Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the State governments with the civil rights, law, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.

It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best.

What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body.”